ABSTRACT: This article reports the results of a laboratory experiment that examines the strategic effect of forward contracts on market power in infinitely repeated duopolies. Two competing effects motivate the experimental design. Allaz and Vila (1993) argue that forward markets act like additional competitors in that they increase quantity competition among firms. Conversely, Liski and Montero (2006) argue that forward contracting can facilitate collusive outcomes by enabling firms to soften competition. The experiment provides a first simultaneous test of these rival effects. Contrary to previous experimental studies, the results do not support the quantity-competition effect. Further, the findings provide evidence in support of the collusive hypothesis.

ABSTRACT: We present a theory of context-dependent choice in which a consumer's attention is drawn to salient attributes of goods, such as quality or price. An attribute is salient for a good when it stands out among the good's attributes, relative to that attribute's average level in the choice set (or generally, the evoked set). Consumers attach disproportionately high weight to salient attributes and their choices are tilted toward goods with higher quality/price ratios. The model accounts for a variety of disparate evidence, including decoy effects, context-dependent willingness to pay, and large shifts in demand in response to price shocks.

ABSTRACT: We characterise the subgame perfect equilibrium of a differential market game with hyperbolic inverse demand where firms are quantity-setters and accumulate capacity over time a la Ramsey. The related Hamilton-Jacobi-Bellman are solved in closed form both on infinite and on finite horizon setups and the optimal strategies are determined. Then, we analyse the feasibility of horizontal mergers in both static and dynamic settings, and find appropriate conditions for their profitability under both circumstances. Static profitability of a merger implies dynamic profitability of the same merger. It appears that such a demand structure makes mergers more likely to occur than they would on the basis of the standard linear inverse demand.

Posted by D. Daniel Sokol Jan Richter (Energiewirtschaftliches Institut an der Universitaet zu Koeln) has written on Incomplete Information in Cournot Oligopoly: The Case of Unknown Production Capacities. ABSTRACT: A Cournot oligopoly in which firms face incomplete information with respect to production capacities is studied. For the case where the firms’ capacities are stochastically independent, the functional form of equilibrium strategies is derived. If inverse demand is concave, a unique symmetric equilibrium exists, and if demand is linear, then every equilibrium is symmetric. In the case of duopoly, the impact on social welfare when firms commit ex-ante on exchanging information is analyzed. Sharing information increases expected output and social welfare in a large class of models. If the demand intercept is sufficiently large, sharing information increases producer surplus and decreases consumer surplus (and vice versa).

ABSTRACT: In this work, disruptive innovation theory is applied to studying multi-sided platforms (MSPs). It is argued that a successful MSP is one that is capable of making products, which are likely to disrupt the current market. The authors develop a mechanism by which it is possible to determine the disruptive potential of an innovation. Its application is then demonstrated on the case of E-publishing and digital books. Based on the study, we suggest that determining disruptive potential should be a key strategic question, when creating and managing MSPs.

I am very happy to report that Edith Ramirez has been named Chairwomen of the FTC. Ramirez is a strong choice. She is analytically sharp and a reasonable person from my read of her policy statements and decisions. There are a number of issues where the FTC can play a vital role going forward. Ramirez can help bring clarity to health care, standard essential patents, and state anti-competitive regulation to name just a few issues on the antitrust side.

Ramirez is, to my knowledge, also the first Latina Chair of the FTC (and Obama’s campaign director of Latino Outreach in the state of California in his 2008 campaign). I am an immigrant from Latin America to the United States. English was my third language. I feel great pride whenever someone of Latin origin reaches great success.

ABSTRACT: Two-part tariffs, when used at the retail level, increase efficiency by lowering the price of marginal units. The same potential for higher efficiency exists for two-part tariffs at wholesale level for a given market structure, but the fixed part of the wholesale tariff can negatively affect the latter. In a simulated competition model of next-generation telecommunications access networks that has been calibrated with engineering cost data, we show that the latter effects strongly outweigh the former. That is, substituting a cost-based linear wholesale access tariff with revenue-equivalent two-part tariffs reduces the number of access seekers and therefore leads to higher prices and lower welfare and consumer surplus.

OECD Report on international enforcement co-operation that the Secretariat produced on the basis of the responses (55 from both OECD and non-OECD) to the OECD/ICN questionnaire that was sent last summer to competition agencies around the world. The OECD Secretariat Report was presented yesterday to Working Party 3 of the OECD Competition Committee.

The key findings of the Report include:

·International cooperation is a policy priority for a vast majority of competition agencies. The globalization of markets, and consequently of anticompetitive activity, requires increasing and enhanced cooperation in enforcement;

·Most agencies find international cooperation to be useful for their enforcement strategies. Informal cooperation has proved particularly valuable in investigations (and might be sufficient in-and-of-itself in many cases). The benefits from cooperation outweigh the costs;

·Competition agencies can rely on different legal bases for international cooperation. Some are designed specifically for the purposes of competition enforcement; in the absence of a specific competition instrument, other international cooperation instruments can apply;

·Formal instruments for cooperation, such as comity provisions and notification mechanisms, are widely available but are used only by a limited number of agencies;

·Outside of regional cooperation, frequent or regular experience in international cooperation appears to be concentrated among a few, more experienced, agencies. Experience with international cooperation has, however, increased significantly in the last five years and is expected to keep doing so (responses indicate that the number of multi-jurisdictional cases is rising over time). Merger review is the enforcement area in which there has been the highest number of cases involving international cooperation;

·Regional cooperation is common in many parts of the world. However, actual experiences with case cooperation seem to differ significantly across regional networks;

·Participants in regional networks identified specific advantages (such as the strong legal basis for cooperation, convergence in national laws and agency procedures) that are seen as contributing to increased effectiveness. A few disadvantages of regional cooperation also were identified;

·Legal limitations, due to differences in legal systems and to restrictions in domestic legislation, appear to be one of the more important limitations on international cooperation. Addressing these limitations could be beneficial, despite the costs associated with it;

·Effective cooperation of enforcement action is enhanced by the ability of enforcers to exchange information (both confidential and non-confidential) about the cases they are investigating. The exchange of information remains a core feature of international cooperation;

·Confidentiality waivers are often relied upon by agencies, when possible, to address existing limitations to the exchange of information. Experiences with waivers are generally positive, although the use of waivers is not as broad as it might be;

·The OECD played an important role in shaping the current framework for international enforcement co-operation. It also confirmed that the role of the 2005 OECD recommendation on international co-operation was significantly more effective than that of the 2005Best Practices on the exchange of information in cartel investigations;

·Incentives to engage in international cooperation might be improved through the adoption of a clear legal and institutional setting for cooperation and increased awareness of the benefits of cooperation;

·Exchanges of information (especially confidential information) is a key area for improvement. Many respondents suggested that agencies should agree on a clearer legal framework for the exchange of information. Reforms in the area of confidentiality waivers are viewed as a way to foster more valuable cooperation through a more effective exchange of confidential information between enforcers;

·OECD instruments could be amended or updated to reflect the current status and needs of international co-operation. Developing a model bilateral or multilateral co-operation agreement and a model bilateral or multilateral agreement for the exchange of information are among the projects which obtained the largest support among respondents, followed by the development of a model confidentiality waiver.

ABSTRACT: Under the current regime for Internet access, “network neutrality,” parties are billed only by
the Internet service provider (ISP) through which they connect to the Internet; pricing is not
contingent on the content being transmitted. Recently, ISPs have proposed that content and
applications providers pay them additional fees for accessing the ISPs’ residential clients, as
well as fees to prioritize certain content. We analyze the private and social implications of such
fees when the network is congested and more traffic implies greater delays. We derive conditions
under which network neutrality would be welfare superior to any feasible scheme for prioritizing
service.

ABSTRACT: During the first seven decades of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of “competition” as the goal of U.S. competition laws. This Article explores how antitrust lost the goal of competition, and argues that this goal should be restored. The Article reevaluates several influential antitrust propositions. First, while “consumer welfare” was offered as a remedy for reconciling contrasts and inconsistencies in antitrust, the adoption of the standard sparked an enduring controversy and “set sail on a sea of doubt.” The consumer welfare standard has been a source of confusion and doctrinal uncertainty. Second, the small-business interests hypothesis, which has been often used to explain the enactment of the Sherman Act, is inconsistent with the well-documented historical record. Third, the logic of Robert Bork’s consumer welfare thesis supposedly requires restoration of “competition” as the goal of antitrust. The Article concludes with a straightforward observation: “Consumer welfare” may continue serving as the stated goal of U.S. competition laws but, practically, antitrust has always been and will always be about the preservation of competition.

ABSTRACT: What, if anything, are the implications of the happiness economic literature on competition policy? This Paper first examines whether competition policy should promote (or at least not impede) citizens’ opportunities to increase well-being. The Paper next surveys the happiness literature on five key issues: (i) What constitutes well-being; (ii) How do you measure well-being; (iii) What increases well-being; (iv) Do people want to be happy; and (v) Can and should the government promote total well-being? Although the happiness literature does not provide an analytical framework for analyzing routine antitrust issues, this does not mean that competition officials should discount or ignore the literature altogether.

The findings of the happiness literature, as this Paper argues, offer some helpful insights on the current debate over antitrust’s goals. The literature suggests that competition policy in a post-industrial wealthy country would get more bang (in terms of increased well-being) in promoting economic, social and democratic values, rather than simply promoting a narrowly-defined consumer welfare objective.

ABSTRACT: This article offers a reinterpretation of the Supreme Court’s seminal decision in Matsushita Electric Industrial Co. v. Zenith Radio Corporation. Although the Matsushita decision is often credited for ushering in a new era of summary judgment by shifting power from the jury to trial court judges, this conclusion is based on an erroneous understanding of the case. In reality, Matsushita is a narrow decision that does not alter the relationship between judge and jury. Appreciating the true import of Matsushita is possible only by delineating between the concepts of probability and confidence. The Supreme Court’s decision in Matsushita is usually understood as having been decided according to a probability analysis, but the best interpretation of the case is that it was decided pursuant to a confidence analysis. Recognizing the true basis of the Matsushita decision dispels the popular belief that Matsushita requires an aggressive use of summary judgment by trial judges. In addition, properly understanding Matsushita is the key to comprehending the pleading requirement of “plausibility,” introduced by the Supreme Court in Bell Atlantic v. Twombly.

ABSTRACT: This article examines the roles of economics and politics in U.S. antitrust from several perspectives. It explains why the modern debate over the economic welfare standard that enforcers and courts should pursue is unsatisfying. It connects economics and politics by describing antitrust’s economic goals as the product of a mid-20th century political understanding about the nature of economic regulation that has continued in force to this day. To protect that understanding, it explains, antitrust rules should now be implemented using a qualified consumer welfare standard. The article also identifies contemporary political tensions that threaten to create regulatory gridlock, or even to undermine the political understanding, and uses that framework to sketch several possible futures for competition policy. The article concludes with a comment on the indispensable role of economics in shaping and applying modern antitrust.

ABSTRACT: The goals of antitrust law continue to be debated because there is no single goal that is unambiguously correct. There is one goal, however, that now commands wider support than any other: protecting consumers and small suppliers from anticompetitive conduct – conduct that creates market power, transfers wealth from consumers or small suppliers, and fails to provide them with compensating benefits. This goal is the predominant objective in the legislative histories, it is broadly supported by the American people, it is easier to administer than total welfare, and it is now espoused by the majority of courts.

Proponents of total welfare advance two principal arguments, but neither warrants elevating it over consumer and small supplier protection. First, from a normative perspective, total welfare is arguably the superior goal because it considers the welfare of all participants in the economy, including producers and consumers outside the relevant market. It ignores, however, the transfer of wealth that anticompetitive conduct causes, a transfer that many people regard as exploitative and unfair. Second, from a legal perspective, total welfare is arguably the goal of section 2 of the Sherman Act because it allows a firm to gain monopoly power through superior efficiency. But this safe harbor is equally consistent with a consumer protection goal, since it encourages firms to succeed in the marketplace by providing customers with better products, lower prices, and wider choice.

ABSTRACT: The U.S. Department of Justice, Antitrust Division (Division or DOJ), has filed a high profile case against Apple and several large book publishers (Complaint). The case alleges that the defendants agreed to change the way e-books were sold. Publishers generally follow the wholesale model, selling books outright — both “e” and traditional — to booksellers who then set retail prices. The challenged agreement allegedly required the publishers to switch to an agency model for e-books. Pursuant to this model, each publisher would set the resale price and pay a thirty percent commission to the retailer. The Division alleges that the publishers made these changes because they feared that lower prices for e-books would lead to “lower prices for print books.” Amazon had set a $9.99 retail price for popular e-books, which the Division alleged was “substantially lower than hardcover versions of the same title.” The publisher defendants were concerned these lower e-book prices would lead to the “‘deflation’ of hardcover book prices.” In addition to price competition, the Complaint maintains that traditional publishers were concerned that e-book-only publishers could effectively steer consumers away from print books, thus devaluing investments in manufacturing and distribution assets that the legacy publishers had made to support their print businesses.

Although the DOJ contends that Apple’s agreement with the publishers is a naked agreement to fix prices and thus illegal per se, the government hedges its bets. Much of the complaint reads as if the government were alleging a rule-of-reason case, articulating actual anticompetitive effects in an e-book relevant product market of which the publisher defendants possess a large share. Whether viewed as a per se or rule-of-reason case, however, the Complaint convincingly tells the story of traditional publishers scheming to increase consumer prices and restrain competition from upstart e-book publishers. That three publisher defendants agreed to abandon the agreement and submit to the on-going, intrusive government scrutiny that comes with a consent decree confirms the case’s strength.

Yet a sophisticated, doctrinally focused antitrust lawyer would have no trouble attacking (1) the applicability of the per se rule and (2) the contention that e-books form a separate product market and thus do not compete directly with traditional books. The alleged agreement does not, on its face, appear to almost always harm consumer interests, as per se illegal agreements must. An agency distribution scheme could, for example, pro-competitively facilitate an industry introducing a new product into an established market.

Market definition is often a critical factor in antitrust cases because practices that harm consumers in a narrow market may have an insignificant impact in a broader market. The choice to define the market as “e-books only” is consistent with the Division’s claim that practices only affecting e-books can harm consumers. Many consumers, however, readily substitute traditional books for e-books, and the Division’s anticompetitive story is motivated by e-books’ competitive impact on ordinary book sales. From a doctrinal perspective, defining the market as limited to e-books-only seems too narrow.

That these points are debatable should not suggest that the government’s case is weak. But the litigating defendants will spill plenty of ink nonetheless. Already, Apple’s answer denies the existence of an e-book-only product market and attacks the complaint for ignoring that the agency model enabled robust competition by breaking up Amazon’s dominant position. Could skillful lawyering bamboozle a judge with limited antitrust chops? Perhaps the time has come to ask whether the per se rule and traditional market definition doctrine have become more trouble than they are worth.

Part I reviews the allegations in the complaint with respect to per se liability and market definition. Part II shows how a relentlessly doctrinal approach to criticizing the Division’s per se and relevant market allegations could distort the antitrust analysis. Part III explains that these criticisms do not undermine the case in any meaningful sense — they simply create the opportunity for distracting doctrinal posturing. This Part then raises the question: If traditional doctrine has lost its ability to simplify antitrust cases, do these hoary tools serve any useful purpose?

ABSTRACT: This article determines the overall purpose of the Antitrust statutes in two very different ways. First, it performs a traditional analysis of the legislative history of the Antitrust laws by analyzing relevant legislative debates and committee reports. Second, it undertakes a textualist or "plain meaning" determination of the purpose of the Antitrust statutes, using Justice Scalia's methodology. It does this by analyzing the meaning of key terms as they were used in contemporary dictionaries, legal treatises, common law cases, and the earliest U.S. Antitrust cases, and it does this in light of the history of the times.

Both approaches demonstrate that the overriding purpose of the Antitrust statutes is to prevent firms from stealing from consumers by charging them supracompetitive prices. When firms use their market power to raise prices to supracompetitive levels, consumers pay more for their goods and services, and these overcharges constitute a taking of consumers' property. Economic efficiency was only a secondary concern. In addition, the textualist approach leads to the surprising conclusion that neither the Sherman Act nor the Clayton Act contain an exception for monopolies attained through efficient business conduct. The Antitrust laws are supposed to prevent and condemn all privately created monopolies.

ABSTRACT: We analyze the effects of mergers in first-price sealed-bid auctions on bidders' equilibrium bidding functions and on revenue. We also study the incentives of bidders to merge given the private information they have. We develop two models, depending on how after-merger valuations are created. In the first, single-aspect model, the valuation of the merged firm is the maximum of the valuations of the two firms engaged in the merger. In the multi-aspect model, a bidder's valuation is the sum of two components and a merged firm chooses the maximum of each component of the two merging firms. In the first model, a merger creates incentives for bidders to shade their bids leading to lower revenue. In the second model, the non-merging firms do not shade their bids and revenue is actually higher. In both models, we show that all bidders have an incentive to merge.

ABSTRACT: This article summarizes results of a study that investigates the signaling role of environmental policy in promoting, or hindering, the ability of a monopolist to practice entry deterrence. We show that environmental policy can facilitate the incumbent firm’s concealment of information from potential entrants, thus deterring entry, and yet entailing welfare improvements. When the regulator is absent, we demonstrate that firms’ entry-deterring practices increase pollution relative to a complete information context. Hence, under certain conditions, environmental regulation becomes more beneficial in incomplete than in complete information settings. Furthermore, our results examine how this welfare benefits vary as firms become more symmetric in their production costs.

ABSTRACT: Over the past years several EU Member States decided to integrate their competition authorities with their consumer protection agencies. The Danish Competition Authority and the Danish Consumer Agency merged into the Danish Competition and Consumer Authority in 2010, the new Finnish Competition and Consumer Authority has begun operating on 1st January 2013, the Netherlands Authority for Consumers and Markets (ACM) will merge the Netherlands Competition Authority (NMa) with the Dutch Consumer Authority (CA) and the Netherlands Independent Post and Telecommunications Authority (OPTA) from February 2013.

These institutional mergers are the results of political decisions, based mainly on budgetary concerns. Besides costs savings, national governments justified these institutional mergers by arguing that a consolidated agency can increase efficiency and effectiveness of competition oversight and market regulation, anticipate market developments in a flexible and integrated manner, make better use of consolidated knowledge and expertise, enhance the importance of consumer and competition affairs in society, ensure corporate responsibility with regard to consumer interests and streamline administration. This paper provides a simple framework that helps to evaluate these arguments and decide on the alternative allocation of regulatory powers.

Accordingly, the paper discusses the separation and integration of the public enforcement of competition law and consumer protection by distinguishing three different institutional models: the separate agency model, the partially integrated model and the integrated model. The three models represent different ways for combining or separating public enforcement responsibilities. The paper analyses the synergies and the conflicts of allocating enforcement powers in one or two agencies and sets out the likely consequences of a certain institutional arrangement for procedural norms such as the proportionality of remedies and the time of intervention and for institutional performance norms such as expertise, administrative efficiency, opportunities for consumer participation and accountability. The goal of the paper is to provide a basic overview of the relevant legal and institutional questions that have to be considered when the allocation of regulatory powers is decided upon. The paper also discusses the impact of the EU legal and policy framework on the Member States’ institutional design and the EU’s constraining effects on institutional path dependence.